A North Carolina Highway Patrol officer did not break the law when he pulled over a driver who flipped him the middle finger, the state Court of Appeals said in a decision this week.
Shawn Patrick Ellis asked the court to throw out evidence from the traffic stop on Jan. 9, 2017, arguing that the stop was illegal, according to the decision.
“The trooper had initiated the stop after witnessing Defendant, a passenger in a vehicle traveling on a public highway, wave and then extend his middle finger in the trooper’s general direction,” Judge Chris Dillon wrote in the split decision.
According to the court, a state trooper was helping someone on the side of U.S. Highway 52 when Ellis and his wife drove by and he flipped the bird. The trooper pulled over the SUV with Ellis’s wife in the driver’s seat. Both initially refused to give the officer their IDs, but Ellis’ wife eventually did, the decision says.
The trooper cited Ellis for resisting, delaying, and obstructing an officer, giving him a court date but allowed him and his wife to leave without arrest.
The appeals court found that the trooper did not charge Ellis with waving his middle finger, which is protected by the First Amendment. The legality of the traffic stop, the court found, was based on whether “the trooper had reasonable suspicion that criminal activity was afoot.”
“The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed,” Judge Dillon writes.
In a dissenting opinion, Judge John Arrowood disagreed. A passenger waving his middle finger out a car did not justify a traffic stop, Arrowood argues.
“While defendant’s actions were distasteful, they were, in my opinion, within the realm of protected speech under the First Amendment of the United States Constitution. Given that this was protected speech, I believe that the stop was not supported under the reasonable suspicion test of the Fourth Amendment,” Arrowood says, disagreeing with the other two judges on the appeals court.